Section 407. Subsequent Remedial Measures

When measures are taken by a party that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible against that party to prove:

• negligence;

• culpable conduct;

• a defect in a product or its design; or

• a need for a warning or instruction.

But the court may admit this evidence for another purpose such as impeachment or—if disputed—proving ownership, control, or the feasibility of precautionary measures.

Comment

Pa.R.E. 407 differs from F.R.E. 407. The rule has been modified to clarify that the rule only protects the party that took the measures. Though F.R.E. 407 is silent on the point, the courts have generally held that the federal rule does not apply when one other than the alleged tortfeasor takes the action because the reason for the rule (to encourage remedial measures) is not then implicated. See, e.g., TLT-Babcock, Inc. v. Emerson Electric Co., 33 F.3d 397, 400 (4th Cir. 1994) (collecting cases).

Official Note

Adopted May 8, 1998, effective October 1, 1998; amended June 12, 2003, effective July 1, 2003; rescinded and replaced January 17, 2013, effective March 18, 2013.

Committee Explanatory Reports:

Final Report explaining the June 12, 2003 amendments published with the Court’s Order at 33 Pa.B. 2973 (June 28, 2003).

Final Report explaining the January 17, 2013 rescission and replacement published with the Court’s Order at 43 Pa.B. 651 (February 2, 2013).

The provisions of this Rule 407 adopted September 11, 1998, effective October 1, 1998; amended June 12, 2003, effective July 1, 2003, 33 Pa.B. 2973; rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.B. 620. Immediately preceding text appears at serial pages (338879) to (338880).